Didimus and Didimus (Child support)

Didimus and Didimus (Child support) [2022] AATA 4094 (30 September 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024244
APPLICANT:  Ms Didimus
OTHER PARTIES:  Child Support Registrar
Mr Didimus

TRIBUNAL:Member D Cox
DECISION DATE: 30 September 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

(a) The previous determination is revoked on 29 September 2020 in respect of Ms Didimus
     and 11 March 2021 in respect of Mr Didimus, pursuant to subparagraphs 54(F)(3)(ii)
     and 54(F)(3)(iii) of the Child Support (Assessment) Act 1989 (the Assessment Act);
     and
(b) A new determination is made to reflect the care of [Child 1] and [Child 2] as 64% to Ms
Didimus and 36% to Mr Didimus from the day after revocation, pursuant to section 50 of
the Assessment Act; and
(c) Pursuant to subsection 95N(1) of the Child Support (Registration and Collection) Act
     1988, the date of effect of this decision is 12 July 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines to make a determination under subsection 95N(2)

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Ms Didimus and Mr Didimus are the parents of [Child 1] born on[date] January 2014 and [Child 2] born on [date] January 2016.
Pre-existing percentages of care for both children were 365 nights (100%) to Ms Didimus and 0 nights (0%) to Mr Didimus from 7 January 2014.
On 23 January 2021 the Federal Circuit Court made consent orders in relation to the care of [Child 1] and [Child 2].
On 12 March 2021 Ms Didimus notified Services Australia (Child Support) that there had been a change of care on 23 February 2021 and that care of [Child 1] and [Child 2] should be reflected as 261 nights (72%) to Ms Didimus and 104 nights (28%) to Mr Didimus.
On 20 May 2021 Child Support made a decision to reflect the care of [Child 1] and [Child 2] as 235 nights (65%) to Ms Didimus and 130 nights (35%) to Mr Didimus from 30 September 2020.
On 12 April 2022 Mr Didimus lodged an objection to the to the decision of 20 May 2021.
On 3 June 2022 an objections officer part allowed Mr Didimus’s objection and decided to reflect care of [Child 1] and [Child 2] as 203 nights (56%) to Ms Didimus and 162 nights (44%) to Mr Didimus from 30 September 2020, notified on 12 March 2021.
On 12 July 2022 Ms Didimus made an application to the Tribunal for a review of the objections officer’s care percentage decision of 3 June 2022.

CONSIDERATION

Mr Didimus and Ms Didimus attended the hearing by teleconference. Both made affirmations to tell the truth.
Both parties told the Tribunal that they wanted the consent orders to be applied.
The Tribunal asked Mr Didimus why, as the court orders are dated 23 January 2020, the care determination of 20 May 2021 applied from 30 September 2020.
Mr Didimus told the Tribunal that prior to 30 September 2020 he had not been able to have care of the children because of allegations of domestic violence.
Ms Didimus told the Tribunal that a new care pattern had commenced from that date.
Mr Didimus told the Tribunal that the consent orders say that he should have 50% care of the children during school holidays. The children go to a private school which has one more week of school holiday in July than do NSW state schools and that Ms Didimus has the children for two weeks and he for only one week in that holiday period.
Ms Didimus referred to an email addressed to her and dated 8 September 2022 from her solicitor, [which] says:

In terms of your question about division of time during the school holidays in July 2022, I advise the following:

• Providing the first day of the school holidays is deemed to be Monday, 4 July 2022 (upon
   interpretation from the NSW Government school holidays calendar) then the mid-point of the
   school holidays is Wednesday/Thursday 14 July 2022 (I would determine Thursday because the
   midpoint calculated is 10.5 days). This means that Saturday, 16 July 2022 is the Saturday nearest
   to the mid-point of the school holidays. Therefore the changeover should occur on Saturday,
   16 July 2022.

• The mid-point of the school holidays can be calculated by counting halfway between the first day
    of the school holidays, and the last day of the school holidays in any given holiday period. For
    example in 2023, if the first day of the school holidays between term 2 and 3 is Monday,
    3 July 2023, then the mid-point is Friday, 14 July 2022. The closest Saturday is Saturday,
    15 July 2023. Even if the first day of the holidays was on Saturday, 1 July 2023, the midpoint
    would be Wednesday, 12 July 2023 and therefore the Saturday closest is Saturday, 15 July 2023.

In terms of the care percentage, I have reviewed the Orders and I advise the following:

• Based on the Calendar provided and in accordance with the Orders, the division of time is as
   follows:
   ₒ 228 days to you = 62.5%
   ₒ 137 days to Mr Didimus = 37.5%
Throughout the hearing Mr Didimus maintained his contentions that the court orders say 50% of school holidays and that he is being denied one week with his children in July.
Neither party raised any other matter of dispute relating to the percentages of care.
There being no other matter in dispute, the Tribunal advised the parties that it would consider the school calendar, the consent order and actual care to determine the matter.
As the court order and the original decision were made in 2021 the Tribunal had regard to the NSW eastern zone State School calendars for from term 4 of 2020 and all of 2021 to determine the care percentage for the 2021 calendar year.
The relevant dates in 2020 are:

Term 4 – Monday 12 October to Friday 18 December
Summer school holidays (Eastern) – Monday 21 December to Tuesday 26 January 2021

The relevant dates in 2021 are:

Term 1 (Eastern) – Wednesday 27 January to Thursday 1 April
Autumn school holidays – Monday 5 April to Friday 16 April
Term 2 – Monday 19 April to Friday 25 June
Winter school holidays – Monday 28 June to Friday 9 July
Tern 3 – Monday 12 July to Friday 17 September
Spring school holidays – Monday 20 September to Friday 1 October
Term 4 – Tuesday 5 October to Friday 17 December
Summer school holidays (Eastern) – Monday 20 December to Thursday 27 January 2022
The consent orders set out the following arrangements for care:

4. That the children shall spend time with the Father as agreed between the parties in
    writing, or failing agreement as follows:
4.1 During each school term:
    4.1.1 From after school (or 3:00pm) on Wednesday to before school (or 8:30am) on
            Thursday, commencing on the first Wednesday following the commencement of
            School Term 4, 2020 and recommencing on the first Wednesday of each new
            school term of School Term 4, 2020, and continuing each Wednesday thereafter;
            and
    4.1.2 From after school (or 3:00pm) on Friday to before school (or 8:30am) the following
            Monday, commencing on the second Friday following the commencement of
            School Term 4, 2020, and continuing each alternate Friday thereafter,
            recommencing on the second Friday of each new school term.
4.2 For one-half of all school holiday periods at the end of terms 1, 2 and 3 as agreed
    between the parties, and failing agreement, for the second half, from 9:00am on the
    Saturday nearest to the midpoint of the school holiday period to 9:00am on the Sunday
    before the start of the next school term.
4.3 For one half of the school holiday period at the end of Term 4 as agreed between the parties,
    and failing agreement:
    4.3.1 From 8:30am on the 2nd Saturday following the conclusion of Term 4 until 8:30am on the
            following Saturday;
    4.3.2 From 8:30am on the 4th Saturday following the conclusion of Term 4 until 8:30am on the
            following Saturday;
    4.3.3 From 8:30am on the 6th Saturday following the conclusion of Term 4 until 8:30am on the
            following Saturday.
4.4 On the following special occasions:
4.4.1 From 4:00pm on 23 December to 8:00pm Christmas Eve (24 December) each year
       commencing in 2021;
4.4.2 From 9:00am to 5:00pm on Father’s Day each year commencing in 2021;
4.4.3 From 9:00am to 5:00pm on the Father’s Birthday each year commencing in 2021;
4.4.4 From 9:00am to 12:00pm on the children’s birthdays; and
    4.4.5 At any other time as agreed between the parties in writing.

5 That, in the event that the children are not otherwise living with the Mother pursuant to Order 3
    above, the children’s time with the Father shall be suspended and the children shall spend time
    with the Mother as follows:
    5.1 From 8:00pm on Christmas Eve (24 December) to 4:00pm on Boxing Day (26 December) and
        thereafter if her time permits it, each year commencing in 2021;
    5.2 From 9:00am to 5:00pm on Mother’s Day each year;
    5.3 From 9:00am to 5:00pm on the Mother’s Birthday each year commencing in 2021;
    5.4 From 12:00pm to 8:00pm on the children’s birthdays each year commencing in 2021; and
    5.5 At any other time as agreed between the parties in writing.

6 That should the children become upset or otherwise emotional during their time with the Father
    and seek to go back to the Mother, the Father will, as soon as practicable, telephone the Mother
    so that she may pick up the children. The Mother will thereafter return the children to the Father
    the following day at 9:00am (should the following day be a day where the children would ordinarily
    spend time with the Father pursuant to Orders 4 or 5) and the children will continue to spend
    overnight time with the Father in accordance with these Orders (even if they have been returned
    to the Mother on a previous weekend).
In making its calculations, the Tribunal assumed no agreed variations and applied the consent orders to the NSW school calendar with the addition of an extra week of private school holiday in July.
The Tribunal took into account that [Child 1] and [Child 2] attend a private school and have an extra week of holidays in July.
The Tribunal also noted that the NSW State school calendar adopts a convention of ending a school term on the last day of school, usually a Friday, but not commencing the holiday period until the following Monday, or where there is a public holiday (Labour Day and Australia Day) the day following the public holiday.
The Tribunal, for its calculations defined school holidays as starting the day after the last day of term and ending on the day before the first day of the subsequent term
The Tribunal also noted a further issue with the interaction of Mr Didimus’s alternative weekend care and the school holidays where the rotation of his weekend care fell on the first days of a school holiday. In 2021 this occurred at the end of terms 1 and 2.
The Tribunal convened a second hearing to take evidence from the parties about who had care on the Friday, Saturday and Sunday nights when this occurred.
Ms Didimus declined to attend the second hearing but made prior to it made the following submission on the issue:

1. As school holidays commenced from Friday 2nd April 2021 at 2.45pm, my court
    ordered time with the children then commenced and Mr Didimus has no care of the children on
    that weekend. His time for the school holidays commenced 9am Saturday 10th and
    returns the children ready for school to me 9am Sunday 17th April 2021.

2. As school holidays commenced from Friday 25th June 2021 at 2.45pm, my court ordered
    time with the children then commenced and Mr Didimus has no care of the children that
    weekend. I then have care for 2 weeks and Mr Didimus's time with the children commences on
    the second Saturday morning at 9am. He then returns the children the following Sunday
    morning at 9am.
This evidence was put to Mr Didimus at the hearing and he confirmed that it reflected the actual care occurring, although he did not think it was fair. As it was agreed that Ms Didimus’s evidence accurately reflected the actual care occurring these two sets of three days care by Ms Didimus were included in the Tribunal’s calculations.
On the issue of contention between the parties, the extra week of school holidays in July, without an agreement, application of the consent orders results in a split of 15 days for Ms Didimus and 8 days for Mr Didimus.
Pursuant to section 54A of the Assessment Act the Tribunal calculated the actual care over the 2021 calendar year, as set out in the following table:

Month	Wednesdays	Weekends	School holidays
January 2021	1	-	12
February 2021	4	6	-
March 2021	5	6	-
April 2021	2	1	9
May 2021	4	8	-
June 2021	4	3	-
July 2021	2	2	8
August 2021	4	7	-
September 2021	3	3	6
October 2021	4	6	1
November 2021	4	6	-
December 2021	3	3	6
TOTAL	40	51	42

The table at paragraph 32 of these Reasons for Decision shows a pattern of care for a care period of 12 months from 1 January 2021 for [Child 1] and [Child 2] of 133 nights of care (36%) to Mr Didimus and 232 nights of care (64%) to Ms Didimus.
This care pattern:

• Commenced on 30 September 2020 as agreed by the parties;
• Was notified on 12 March 2021; and
• Reflects the nights of care set out in the consent orders of 23 January 2021.
A similar pattern of care would be expected in 2022 and 2023 if the consent orders continue to be applied as the pattern of care.
Section 50 of the Assessment Act requires the Tribunal to determine a percentage of care that reflects a person’s percentage of care that corresponds with the actual care of the child that the person is likely to have.
The Tribunal finds that there was a change of care event on 30 September 2020 and that the pattern of care for [Child 1] and [Child 2] from that date is 36% to Mr Didimus and 64% to Ms Didimus.
Therefore the Tribunal sets aside the objections officer’s decision of 3 June 2022. Due to the operation of section 87AA of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), that decision should have had effect from 12 April 2022, the date Mr Didimus lodged his objection. However, due to Ms Didimus lodging her application to the Tribunal for a review of that decision more than 28 days after the objections officer’s decision was made, the date of effect of the Tribunal’s decision is subject to section 95N(1) of the Registration and Collection Act, see paragraphs 43 to 46 of these Reasons for Decision.
Pursuant to subsection 54F(1) of the Assessment Act, the Tribunal is satisfied that:
(a) the care of [Child 1] and [Child 2] that is actually taking place does not correspond with the
existing percentage of care; and
(b) the responsible persons’ cost percentages for [Child 1] and [Child 2] would change if another
percentage was determined, under section 49 or 50 of the Assessment Act.
Therefore the Tribunal must revoke the previous determination to reflect care of [Child 1] and [Child 2] as 100% to Ms Didimus and 0% to Mr Didimus from 7 January 2014.
Pursuant to subparagraph 54F(3)(b)(i) of the Assessment Act the Tribunal revokes the previous determination for Mr Didimus at midnight on 11 March 2021.
Pursuant to subparagraph 54F(3)(b)(ii) of the Assessment Act the Tribunal revokes the previous determination for Ms Didimus at midnight on 29 September 2020.
Pursuant to subsection 54(2) of the Assessment Act, the Tribunal determined new care percentages for the period 30 September 2020 to 31 December 2021.
Pursuant to section 50 of the Assessment Act, the Tribunal makes a new determination to reflect the care of [Child 1] and [Child 2] as 64% to Ms Didimus from 30 September 2020.
Pursuant to section 50 of the Assessment Act, the Tribunal makes a new determination to reflect the care of [Child 1] and [Child 2] as 36% to Mr Didimus from 12 March 2021.
Subsection 95N(1) of the Registration and Collection Act says:

95N Date of effect of AAT first review decision relating to care percentage decision

If:

(a) on AAT first review, the AAT varies or substitutes a decision on an objection to a care percentage
decision; and
(b) the application for AAT first review was made more than 28 days, or, if the applicant is a resident
of a reciprocating jurisdiction, 90 days, after notice of the decision was given;

then, despite subsection 43(6) of the AAT Act, the decision as varied or substituted by the AAT has or is taken to have had effect on and from the day the application for AAT first review was made.
Ms Didimus made her application for review by the Tribunal on 12 July 2022 which is more than 28 days after the objections officer’s decision on 3 June 2022.
Ms Didimus declined to either verbally or by submission provide the reasons why her application was late. This was despite the consequences being clearly explained to her in writing before the second hearing, which she declined to attend.
The Tribunal was therefore unable to find that there are special circumstances and must apply subsection 95N(1) of the Registration and Collection Act. As a result the date of effect of this decision is 12 July 2022.

DECISION

[2022] AATA 4094

30 September 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Procedural Fairness

Appeal